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FAQs for AI Patent Filing #KnowYourPatent

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FAQs for AI Patent Filing #KnowYourPatent
Thu, 07/01/2021 – 12:39

When an innovator thinks of patenting its innovation, it raises a lot of questions in his/her minds. The questions multiply when the innovation relates to new technologies such as Artificial Intelligence. While we tried to discuss majority of these issues in the AI Patent Hour which was organised in partnership with India AI and Sagacious IP (find the event recording here), which also gave a holistic picture on the AI Patent Landscape in India (Find the detailed report here) and Process to patent AI inventions. There were many questions that still needed answers.

Our panel for the event Neerav Parekh from Vphrase, Anand Subhash from Concept Bytes and Vaibhav Henry from Sagacious IP have answered these questions in our follow-up tweet chat, which have been summarised below:


  1. I have multiple independent inventions related to AI in progress. Is it advisable to go for patenting for all?

Yes, if you think these inventions have commercial value and you have the budget to file all the patents.


  1. My firm has an international spread and I keep collaborating with inventors from different geographies. How do we get a patent?

It doesn’t matter where the inventors reside. What matters is in which country do you want to protect your invention. You should file the patent in the countries where you want to protect your invention. And whoever has contributed to the invention, irrespective of where they are from, can be named an inventor in the patent.


  1. Since the internal workings of an AI is not known how is a patent granted to an AI?

For AI related patents, one has to help explain the flow or the process of an algorithm to the examiner. You can do this via flow charts, or by taking real life examples and explain what steps your software will take and the output at each different stage of the AI algorithm. It is prescribed to include as many examples or even screen shots of the working software to increase chances of success.


  1. Is a patent granted to an Invention created by AI?

In India, patents are not granted to just software applications. What you will have to prove is that this software is being implemented on a hardware processor, making it perform tasks that are superior to what the processor can do without your software. If your invention that is created by AI can be implemented on a processor and explained with the help of diagrams or examples, then you can surely go ahead and file your invention as a patent.


  1. If the limitation period for a patent is 20 years, then can another company use the patent after the period of 20 years?

Yes, after the 20 year period anyone can use the patent’s content. However, you can apply for another patent for the same invention at any point in time, but you have to prove you have made some improvements to the old invention and thus keep holding your patent for longer.


  1. How do I get a patent for a software/algorithm related to AI?

Tie the algorithm to a technical solution and technical effect; Describe the problem solved by the algorithm that gives it clear advantage over prior/ existing solutions.

  1. Is the AI patent treated differently from s/w patent? how to distil the idea to a patentable stage? What needs to be the thought process?

AI patents are not treated differently. However, it depends on how the claims are written, if an AI patent’s claims are written as steps of an algorithm or processing done by a model then it will be treated similarly.


  1. I am developing a novel training methodology for AI models. Can I patent it?

Yes, provided the training has sufficient technical effect, tied to a hardware, has a distinguishable advantage, and has real-world applications. The specification also needs well explained use cases of training methodologies and implementation.


  1. How do you address the issue of granting a patent that was partly created by the AI system and the inventor?

The inventor can claim rights for the part of the invention that they conceived. Also, If the inventor developed an algorithm that “caused” a machine (AI system) to be “configured to” operate in a novel way, then the inventor can claim benefits.


  1. If an employee leaves, does he/she have to assign patents back to the company? Is there any paperwork needed?

Normally the company remains the applicant and the employee will be the inventor of the patent. And hence patent rights are with the company even if the employee switches organizations. Employees continue to enjoy the inventor tag.


  1. Can you share some examples of tech frameworks which were patented earlier?

Normally software’s or algorithms or frameworks as such cannot be patented. However, if one can clearly indicate the real-life improvement & defend it in front of Patent Office, then it will stand a chance to get granted. The key is real-life improvements seen and the innovation is not so obvious.


  1. What are the basic issues in filing AI patents to avoid litigations?

It depends on what part of AI we want to file. For e.g., steps involved or datasets or improvements in algorithms (like filters, operators, feature algos) cannot as such fall under software patent. However, if we can connect that to a real-life improvement (qualifiable & quantifiable), then we can easily defend the AI Invention.


  1. Is there any predefined template or sample to document our idea and then complete further drafting of patent application?

Yes, each patent office will have a template and format for articulating the invention. For example, Indian Patent Office has published templates & guidelines at Here form-2 is used for complete specification.


  1. What is the approximate cost (or range) to file a patent in India?

Different costs are applicable based on the patent applicant being an individual or based on size of entity. MSME has schemes to reimburse patent fees on successful grants. On similar lines, Startup India gives 80% rebase on patent fees + acceleration of grant and finally pays agent fees up to Rs. 25,000.


  1. Is a patent valid in every country?

A patent is only valid in the country where the patent has been applied for and granted. An Indian patent is valid in India and not in US. Patent needs to be filed in all the countries separately wherever protection is needed.


  1. So if a patent is filed in 2 countries and violation happens in a 3rd, how should it be tackled.

If one doesn’t have a patent in the third country then, unfortunately, nothing can be done. Hence, an IP strategy needs to be designed so as to cover all the intended markets.


  1. In Spite of having the most innovative startup decade, we see that the Alphabets and the Microsofts of the world lead the race of highest AI patent filings. What can be done to empower small to medium size companies to pick pace in adding to the level of innovation and patent filing?

To patent, one needs to invent, and to invent, one needs to invest in research. Large companies have deep pockets to invest in research while small and medium businesses don’t have that luxury. However, in India, the government is helping small companies, doing innovative work. Through grants and subsidies, they try to bring down the patent filing cost. And we are seeing the results in the increasing number of patents filed by Indian companies over the last 5 years.

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